HeadnoteMRRSapplication for relief from registration and prospectus requirementsin connection with issuance of common shares to members of anexisting not-for-profit corporation which carry on business asretail travel agents, and certain additional persons and companies,as part of a reorganization of the corporation - purpose of theapplicant is to foster and advance the interests of its members- members not investors in a conventional sense and share issuancenot primarily a financing vehicle for the applicant - relief grantedsubject to conditions, including first trade restrictions
ApplicableOntario Statutory Provisions
SecuritiesAct, R.S.O. 1990, c.S.5, as am., ss. 25, 53 and 74(1).
MultilateralInstrument 45-102: Resale of Securities
INTHE MATTER OF
THESECURITIES LEGISLATION OF
BRITISHCOLUMBIA AND ONTARIO
INTHE MATTER OF
THEMUTUAL RELIANCE REVIEW SYSTEM
FOREXEMPTIVE RELIEF APPLICATIONS
INTHE MATTER OF
WHEREASthe local securities regulatory authority or regulator (the"Decision Maker") in each of British Columbia and Ontario (the"Jurisdictions") has received an application from Travel T-CommInc. (the "Applicant") for a decision under the securities legislationof the Jurisdictions (the "Legislation") that the requirementcontained in the Legislation that prohibits a person or companyfrom:
a)trading in a security unless the person or company is registeredin the appropriate category of registration under the Legislation(the "Registration Requirement"); and
b)distributing a security unless a preliminary prospectus andprospectus for the security have been filed and receipts thereforobtained (the "Prospectus Requirement");
shallnot apply to trades of common shares (the "Common Shares") ofthe Applicant to Members, Eligible Transferees and ApprovedCandidates (as such terms are defined below), subject to certainconditions;
ANDWHEREAS under the Mutual Reliance Review System forExemptive Relief Applications (the "System"), the Ontario SecuritiesCommission is the principal regulator for this application;
ANDWHEREAS the Applicant has represented to the DecisionMakers that:
1.The Applicant was incorporated on May 3, 2001 as a corporationpursuant to the Business Corporations Act (Ontario).
2.The registered office of the Applicant is in Mississauga, Ontario.
3.The Applicant has been incorporated to carry on the same activitiesas were previously carried on by an existing, not-for-profitcorporation, T-Comm, A Travel Communication Association Inc.(the "Predecessor Corporation").
4.The Predecessor Corporation was created as a not-for-profitcorporation by the grant of a charter by letters patent on December13, 1983 pursuant to the Canada Corporations Act.
5.The principal objects of the Predecessor Corporation are, andthe principal objects of the Applicant will be, to foster andadvance the interests of the members through, inter alia,representing the members in matters pertaining to the travelindustry, negotiating agreements on their behalf, providingcontinuing education to members, and disseminating to the mediainformation on behalf of the membership.
6.The existing members of the Predecessor Corporation (the "Members")are independent small businesses which carry on business asretail travel agents. The Predecessor Corporation has 133 Memberslocated in Ontario and two Members located in British Columbia.
7.Neither the Predecessor Corporation nor the Applicant is a reportingissuer (or the equivalent) in any province or territory in Canada,nor has any present intention of becoming a reporting issuerin any jurisdiction. Neither the Predecessor Corporation's shares,nor the Common Shares are listed or quoted on any stock exchangeor market.
8.The authorized capital of the Applicant consists of an unlimitednumber of Common Shares. Currently, no Common Shares are issuedand outstanding.
9.The Applicant desires to offer each of the Members of the PredecessorCorporation the opportunity to subscribe for one Common Sharefor a subscription price of $1.00. The Applicant further desiresto be able to offer, from time to time, the same opportunityto subscribe for one Common Share on similar terms to candidatesapproved for membership in the Applicant ("Approved Candidates")by the board of directors of the Applicant (the "Board of Directors").
10.To be eligible to be a shareholder (a "Shareholder") of theApplicant, the Shareholder, either as an individual, partnership,or corporation, must engage, full time, in operating a travelagency (the business of offering the sale of travel servicesto the public) and must be in compliance with provincial legislationand regulations relating to travel agents.
11.In addition, each Shareholder will be required to enter intoa shareholders agreement (the "Shareholders' Agreement"), acopy of which has been filed with the Decision Makers. The Shareholders'Agreement contains restrictions on the transferability of theCommon Shares, and sets out the circumstances under which theApplicant is entitled to redeem or cancel any Shareholder'sCommon Shares.
12.No Shareholder may own more than one Common Share. Ownershipof Common Shares entitles the Shareholder to one vote for theelection of directors and on other matters relating to the affairsof the Applicant as may be submitted to a vote of the Shareholders.Only holders of Common Shares are entitled to a vote. Each Shareholderhas an equal vote in the election of directors and on othermatters.
13.The Common Shares may be transferred only with the consent ofthe Board of Directors and only to a person or company (eachan "Eligible Transferee") as follows:
(i)the Applicant,(ii) a spouse, child, daughter-in-law, or son-in-lawof a Shareholder;
(iii)to a holding corporation wholly owned by the Shareholder; or
(iv)to an Approved Candidate as part of the sale of the Shareholder'sbusiness, or shares in a corporate Shareholder, in its entirety.14.Upon the occurrence of any event of termination as described inthe bylaws of the Applicant (the "By-Laws"), the Board of Directors,may, by resolution, determine that a Shareholder is no longereligible to be a Shareholder. An event of termination includesthe Shareholder becoming ineligible to be a Shareholder for anyreason. Upon such determination the Board of Directors may redeemthe Shareholder's Common Share in accordance with the Articlesof Incorporation dated May 3, 2001, as amended by Articles ofAmendment dated July 25, 2001 (collectively the "Articles") andBy-Laws at the price paid by the Shareholder to purchase the CommonShare, and thereafter the Shareholder shall cease to be a Shareholderand shall cease to have voting rights.
15.The Applicant will prepare and send to each of its Shareholdersannual unaudited financial statements. The Applicant intends toseek a written consent from all the Shareholders to waive theaudit requirements of the Business Corporations Act (Ontario),and accordingly does not currently anticipate that it will berequired to prepare and send audited financial statements to theShareholders.
ANDWHEREAS under the System, this MRRS Decision Documentevidences the decision of each Decision Maker (collectively,the "Decision");ANDWHEREAS each Decision Maker is satisfied that the testscontained in the Legislation that provide such Decision Makerwith the jurisdiction to make the Decision have been met;
THEDECISION of the Decision Makers under the Legislationis that the Registration Requirement and the Prospectus Requirementshall not apply to a trade of Common Shares made to a Member,an Eligible Transferee or to an Approved Candidate provided that:
a)prior to the initial trade of any Common Shares to a Member oran Approved Candidate pursuant to this Decision, the Applicantdelivers to the Member or Approved Candidate, as the case maybe, a copy of:
(i)the Articles of the Applicant;
(ii)a copy of the By-laws;
(iii)a copy of the Shareholders' Agreement;
(iv)the most recent annual financial statements of the Applicant,if such have then been prepared;
(v)this Decision; and
(vi)A statement that, as a consequence of this Decision, certain protections,rights and remedies provided by the Legislation, including statutoryrights of rescission or damages, will not be available to Shareholdersacquiring Common Shares pursuant to this Decision;
b)the first trade in a Common Share acquired pursuant to this Decisionto a person or company who is not an Eligible Transferee shallbe deemed to be a distribution or a primary distribution to thepublic unless the conditions in subsections (2) or (3) of section2.5 of Multilateral Instrument 45-102 are satisfied;
c)The Common Share certificates shall be engrossed with a legenddisclosing the restrictions on the transfer of the shares; and
d)The exemptions contained in this Decision cease to be effectiveif any of the provisions of the Articles relevant to the exemptionsgranted herein are amended in any material respect.
"PaulMoore" "K.D. Adams"